Separate vs. Community

Whether property is separate or community in Texas is determined by its character at the inception of the party's title or ownership. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001). In other words, the date of purchase of the property determines its status as to whether Texas considers the property as separate or community to the marriage estate. Inception of title is when a party first has a claim of right to the property by virtue of when title is ultimately vested. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (op. on reh'g); Smith v. Smith, 22 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000. no pet.) (op. on reh'g). There is an underlying presumption under Texas law that property purchased during marriage is community. To overcome the community presumption, the spouse claiming property as his separate property has the burden to trace and clearly identify that property as separate. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144.

What is Separate Property and Communtity Property in Texas?

Generally, all property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. ' 3.003(a) (Vernon 2006); see McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973). The burden of overcoming the presumption of community property is on the party asserting otherwise by clear and convincing evidence. Licata v. Licata, 11 S.W.2d 269, 272B73 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).

A clear and convincing evidence burden of proof means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. See In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

Whether property is separate or community is determined by its character at the inception of the party's title. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001). Inception of title is when a party first has a claim of right to the property by virtue of when title is ultimately vested. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (op. on rehg); Smith v. Smith, 22 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000. no pet.) (op. on rehg). To overcome the community presumption, the spouse claiming property as his separate property has the burden to trace and clearly identify that property as separate. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144.